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Our balcony has some tiling issues which has resulted in leaks to the units below. This has been going on for years and We have always cooperated with access for inspections, quotes and minor repairs. The body corporate arranged testing for persistent leakage, which indicated removing and replacing some tiles. They then went ahead and arranged quotes for retiling our whole balcony.
at the AGM, the decision was made to retile the whole balcony. This was not our preferred option but we were outvoted and that is fine.
Our issue is access to the balcony. The balcony is almost a wrap around of our whole unit. The project is large and would take a minimum of a fortnight. Providing internal access would mean opening up our home for this entire period with the consequent mess also of concrete etc in every room ( due to the Layout, every room opens onto the balcony). We have a baby who has been sick for the last two months, and we both have jobs. Our request is that access be arranged externally. this would mean a scissor lift, we are on the second floor. Are we allowed to insist on this?
we are in NSW
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Hi Whale,
I agree with you in principle, but as we all know the Law isn’t an exact science and a certain amount of discretion is required to cover every situation. I think the point Leif was making was ‘consent’ must be sought and actually ‘granted’.
I am sure there are many cases of judges deciding that trespass would have to be considered with the prime right of an Australian Citizens privacy to be upheld. I am enlightened by your experience seems to favour an OC with the right intentions, and I would support that, but having witnessed the exact opposite happening I see the very real negatives in a generalisation of s65. Has there been many successful applications of this from the point of view of an OC demanding access to a private lot? I cannot find a listed decision on the legal sites.
My point regarding the CTTT and enforcement is that it has to be applied by a jurisdictional court in order for some weight to be added to the order. An order under s65 could easily be appealed by an owner, who for whatever reason did not want the OC or their agents to enter onto their private parcel. It very readily gives rise to other issues such as fraud on the minority, nuisance ect.
Anyhow, I think this site is great as everyone’s opinion (leif, whale, JimmyT, etc.) on the subject sheds light to the different elements of each case. It would be great to have a clear black and white answer to these issues, but it’s not always as simple as that. Hopefully Newbie will allow access for the sake of improving the common property of their lot.
I am shutting this discussion down for the simple reason that the facts have been established and continuing debate about who’s right and who’s wrong helps no one and simply adds to confusion.
So here are the facts as supported by Section 65 of the Strata Schemes Management Act 1996 (quoted at length in my posting below).
In NSW, the Owners Corporation of a strata scheme can seek orders at the CTTT demanding access to an owner’s lot for the purposes of maintaining or repairing common property, or even just to investigate whether this work is required.
Owners can be fined for obstructing the Owners Corp (or its agents) in pursuit of these repairs. If there is any continuing doubt over this, consider the fact that, under the same section, any damage caused by the OC in gaining access is the liability of the owner if they have illegally obstructed or hindered access.
That’s the law. The actual process of enforcing that law is a lot less direct and requires mediation, adjudication, possible appeals and fines for non compliance. Where the situation gets serious for the obstructing owner is when a CTTT order is issued and they ignore it. That’s when potential fines go from $220 to a maximum of $5,500.
That said, sensible owners, executive committees and strata managers would negotiate access in a way that was mutually acceptable. That’s what should be happening in this case.
However, I would make this point – any owner who ends up being taken to Fair Trading and the CTTT to have access ordered is going to get a lot more sympathetic hearing if they show willing to compromise than if they turn up claiming the law is wrong and they are right.
That’s just my opinion, of course, but with that I declare this issue closed.
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I know i said i was shutting this down but a friendly strata manager has just informed me about a case decided recently where access was ordered and the obstructing owners was fined the maximum $5,500 for not complying with the order.
In very basic terms, water was flooding from one unit into the unit below. The owner of the upstairs unit refused the Owners Corps fixers access to the unit so the strata manager and OC went to the CTTT and asked for an interim order – a kind of emergency measure – allowing them access, plus a longer-standing order for the same.
The obstructing owner still refused so they went back to the CTTT and got a penalty notice served.
There are two interesting aspects to this. Firstly, the penalty was ordered to be paid to the owners Corp, not the CTTT. Secondly, the case was conducted at minimal cost by the strata manager and the owners corp without a lawyer.
I think this should finally put to bed any nonsense about Owners Corps not being able to demand access to private property in order to fix common property.
You can read the Interim Order HERE and the penalty notice HERE.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.